In the Marriage of Fedele

[1986] FamCA 14

In the marriage of FEDELE, v. and FEDELE, C.L.

(1986) FLC ¶91-744

Other publishers' citations: (1986) 10 FamLR 1069

Full Court of the Family Court of Australia at Sydney.

Judgment delivered 11 July 1986.

Before: Fogarty, Murray and Nygh JJ.

Fogarty, Murray and Nygh JJ.: By a notice of appeal dated 12 February 1986, V. Fedele has appealed against orders which were made by Ellis J. on 3 February 1986 after a hearing before him on that day. The effect of those orders was to order that the husband vacate premises at Narraweena, and that his wife have the sole occupancy of that home, that to take effect at the expiration of two months from the date of that order.

Although the parties have been divorced, it is convenient, for the purposes of this judgment, to refer to them as the husband and wife respectively.

The background facts may be summarised in this way. The parties were married on 25 November 1972, they separated under the same roof in the matrimonial home at Narraweena on 14 September 1983. The wife finally left the matrimonial home with the two children on 17 October 1983. The two children, both boys, were born in January 1974 and September 1975 respectively, so that they were aged 12 and 10½ at the time of the hearing before Ellis J.

The parties only lived together in the matrimonial home at Narraweena for a period of about three months before the final separation. In the period of approximately three years immediately preceding that the parties had lived with their children in the home of the wife's parents in the same locality. Since the separation, the wife and the two children have returned to live at her parents' home. However, her mother died shortly after the wife returned there, and, since that time, until the hearing of the application, the home was occupied by the grandfather, the wife and her two children and an adult brother of the wife. The husband has continued to live alone in the matrimonial home. The parties were divorced by this Court in May 1985. In the meantime, the wife had instituted proceedings in May 1984 seeking property orders in respect of the matrimonial home and other assets of the parties. The application has not yet come on for hearing.

The present application of the wife, that is the application by her in which she sought the exclusive occupation of the former matrimonial home, was instituted by her on 20 September 1985 and as we have indicated, came on for hearing before Ellis J. in the Sydney Registry on 3 February 1986.

The proceedings before his Honour were proceedings for injunctions or orders under sec. 114(1) of the Family Law Act, and in particular under para. (f) of that section which provides that ``The court may make such order or grant such injunction as it thinks proper with respect to the matter to which the proceedings relate including... (f) an injunction relating to the use or occupancy of the matrimonial home''. Thus, the proceeding before us is an appeal against a discretionary judgment and the well-established principles which guide appellate courts in relation to the review of discretionary orders apply to this proceeding. It is unnecessary in this case to traverse the relevant authorities in detail. It is sufficient to refer generally to the well known cases, including House v. The King (1936) 55 C.L.R. 499 at pp. 504-505; Australian Coal and Shale Employees' Federation v. The Commonwealth (1953) 94 C.L.R. 621 at p. 627; Gronow v. Gronow (1979) FLC ¶90-716; and more recently to the decision of the High Court in Norbis v. Norbis (1986) FLC ¶91-712.

At the commencement of the appeal, counsel who appeared for the appellant husband sought and was granted leave to substitute an amended notice of appeal. However, before referring to the matters argued under that amended notice, it is desirable to refer briefly to the judgment of Ellis J. and to the approach which he adopted on the hearing of this proceeding.

His Honour delivered judgment after evidence and submissions on that day. He firstly referred to the history of the proceedings and of the parties' marriage. He referred in several passages to the accommodation circumstances of the two children which was the most significant feature in this case, as his Honour saw it. He referred to the circumstance that the home in which the wife and children were living together with her brother and father was a four bedroom home, one bedroom of which was occupied by the children and that it was a small room. He went on to say ``As a consequence, their belongings and clothing are located in the grandfather's bedroom''. Subsequently, he referred to the matter in more detail when he said:

``It is clear that the children are living in circumstances which are not completely desirable for them and they have, as I mentioned, a bedroom in their grandfather's home which they share. It is a small bedroom and it is not sufficient to accommodate all their furniture and clothing. The fact that some of it is accommodated in the grandfather's bedroom clearly creates problems. They cannot bring their friends to the home. It would appear that since moving there the grandfather has had a change of heart and he no longer desires to have the children living in his home. It would appear that the children are not happy in that home.''

Finally, his Honour again referred to the needs of the children as being an important aspect in this case. He said:

``These children are clearly living in very cramped circumstances. They are clearly living in an environment, for whatever reason, I say this without being very critical of the wife's father which is, in my view, not in their best interests.''

His Honour then referred to a matter which formed a significant part of the argument for the appellant. He said this:

``The affidavit material and the oral evidence is such that I would be unable to determine the reason for the breakdown of the marriage, but it is not necessary for me to make such a determination. I am unable to determine on the evidence which has been adduced whether, at the time of separation, it was reasonable or practical to expect the parties to live in the former matrimonial home... It does seem to me that they now having separated and having remained separated since 1983, it is no longer practical or reasonable to expect them both to reside together with the two children in this two bedroom former matrimonial home.

I certainly could not conclude, however, that the reasons leading to the wife seeking exclusive use and occupation of the former matrimonial home were of her making. I just simply do not know on the evidence.''

His Honour then referred to the circumstances of the husband. He was living alone in the matrimonial home and also conducted his business from there and it was the address which he used in advertising. His Honour said in relation to this:

``Located in that home is the telephone number which is also used by him when he advertises his business, but that telephone service could be transferred within the same general area to other premises.''

The husband had an income from his business of approximately $429 per week gross. He paid maintenance of approximately $60 per week for the children and had savings of approximately $10,000. The husband sees the children on access each alternate weekend, that being particularly facilitated by the circumstance that both families live in the same general area. So far as the wife's financial circumstances were concerned, she was in receipt of income of approximately $248 per week gross and received a family allowance and the maintenance. As we have indicated, she lived in her father's home in the circumstances we have related.

His Honour then referred to relevant authorities, including Davis and Davis (1983) FLC ¶91-319, Page and Page (1981) FLC ¶91-025 and other cases and reiterated his view that it was ``not reasonable or practical for the parties to live in the same house''.

His Honour then referred to the question of delay by the wife in bringing these proceedings, and concluded that ``In my view that is a factor which I must take into account in coming to a decision, particularly as in this case there has not been demonstrated anything which occurred just prior to the filing of the application to show a particular need or reason for the bringing of the application at that stage''.

On the other hand, his Honour again referred to the needs of the children, to their ``very cramped circumstances'' and to the fact that the husband had ``a reasonable income and considerable savings'' and that ``it has not been suggested by him that he could not afford to rent private accommodation''. His Honour again referred to the hardship which the husband may suffer in relation to the transfer of his business.

His Honour's ultimate conclusion in relation to this matter is to be found in the following paragraph:

``In this case, whilst I have a great deal of sympathy for the husband who continued to reside in the matrimonial home for a considerable period of time after the breakdown of the marriage and the final separation of the parties before an application was brought by the wife, the fact which, in my view, tips the scales in favour of making the order sought by the wife is the needs for the two children of the marriage to which I have referred.''

Against that background, it is convenient to refer to the grounds raised in the amended notice of appeal.

Ground no. 1 is a general ground which merely challenges the appropriateness of his Honour making the orders in question, and no specific argument was addressed to us under that ground.

It is convenient to refer next to ground 2A. That ground is in the following terms:

``His Honour erred in finding as a fact:

(a) that the children were living in very cramped circumstances; and
(b) that the children were living in an environment which was not in their best interests.''

This is a challenge to his Honour's findings of fact or inferences which he has drawn from facts established to his satisfaction in this hearing. His Honour had the clear advantage of having seen and heard the parties giving evidence before him that day. In support of this ground, counsel for the husband drew our attention to the evidence before his Honour. We have summarised his Honour's findings in relation to that. Counsel for the husband did not, in his argument, suggest that his Honour had misunderstood the relevant facts relating to the accommodation and general circumstances in the grandfather's home and the alternative accommodation in the two bedroom matrimonial home. The challenge appeared to be to the appropriateness of his Honour concluding that the children were living in ``very cramped circumstances'' and in an environment that was ``not in their best interests''. It was sufficient for us to say that, in our view, it was clearly within the exercise of his Honour's discretion as the trial Judge to have drawn those conclusions from the material before him.

Under this ground counsel for the husband also argued that his Honour did not place weight on the circumstance that the grandfather had not been called as a witness in the wife's case, relying upon the principle in Jones v. Dunkel (1959) 101 C.L.R. 298, and Lopes v. Taylor (1970) 44 A.L.J.R. 412. It was submitted that that circumstance entitled the Court to draw an inference adverse to the wife's case on these issues and that, as his Honour had not referred to this circumstance in his judgment, his discretion had miscarried, this being particularly so because an aspect of the matter was the attitude or wishes of the grandfather to the children's continued occupancy of his home. It appears that the grandfather, who is an elderly man, was present in Court during the hearing and, of course, it was, as counsel for the wife pointed out, open to the husband's counsel to have called him as a witness. In the circumstances here we do not consider that this matter was a significant fact to which his Honour was required to refer. The facts were in small compass and were followed by counsels' addresses, and it appears that his Honour was satisfied to accept the wife's evidence on these issues.

We turn to ground 2, which was the major ground argued before us. That ground was in the following terms:

``His Honour erred in principle in that, having found that he was unable to determine on the evidence before him:

(a) the reason for the breakdown of the marriage; and
(b) whether at the time of the wife's leaving the former matrimonial home it was reasonable to expect both parties to continue to reside in that home,

his Honour should have dismissed the wife's application.''

We have already referred to the relevant passages in his Honour's judgment to which this ground relates. Under this ground, counsel for the husband submitted that an applicant for an order for sole occupation of a matrimonial home must demonstrate that, at the time when that party left the matrimonial home, it was unreasonable or impractical to expect that person to remain in the home, and, if that is not demonstrated, then the application must, as a matter of law, fail regardless of the circumstances of any children of that marriage and the question of their welfare at the time of the hearing. Counsel for the husband submitted that it was necessary to focus upon the circumstances of the separation, not on the circumstances at the time of the hearing, and that this would be so even if the circumstances of one of the parties or of the children had significantly deteriorated in the intervening period.

As a matter of principle, it is difficult to see why the wide discretion under sec. 114(1) could or should be limited in this way, particularly as considerable hardship to a party and/or children of the marriage may flow as a consequence of the application of such a principle.

However, counsel for the husband said that his submission was supported by authority. He referred us to the Full Court judgment in Davis and Davis (1983) FLC ¶91-319 at p. 78,170, where the Full Court cited with apparent approval a passage from the judgment of Pawley J. in Rowe and Rowe (1980) FLC ¶90-895 at p. 75,644. In that latter case, Pawley J., after referring to other cases, said this:

``In applying the test, it seems to me that the court ought not resort to such words as `intolerable' or `impossible' but must simply be satisfied that it would not be reasonable to expect both parties to continue to remain on the premises together. The test is the same whether at the time of the application both parties were in fact residing on the premises or whether the applicant has withdrawn from them. It is an objective test and, of course, each case must be determined on its own particular facts.

In this case, therefore, one must look to see whether there was any evidence upon which his Honour could have found that the wife had acted reasonably in withdrawing from the matrimonial home; whether in fact she had proper cause to do so by reason of the conduct of her husband. In my view, no such evidence was adduced.''

It appears to us that the view contended for by counsel for the husband could not properly be ascribed either to Pawley J. in Rowe's case or to the Full Court in the 1983 Davis case. At best they were referring to no more than one of a multitude of factors which, in the exercise of the wide discretion under sec. 114(1), a trial Judge may take into account in determining whether it is just and proper to make an order. This is made clear from the earlier quotation by the Full Court in the 1983 Davis case, of the passage from Davis and Davis (1976) FLC ¶90-062 at p. 75,309 which is in the following terms:

``The criteria for the exercise of the power under sec. 114(1) are simply that the court may make such order as it thinks proper. The matters which should be considered include the means and needs of the parties, the needs of the children, hardship to either party or to the children and, where relevant, conduct of one party which may justify the other party, in leaving the home or in asking for the expulsion from the home of the first party.''

That view is emphasised by the circumstance that, immediately after reference to Rowe's case, the Full Court in the 1983 Davis case referred to the unreported judgment of Lindenmayer J. in Price (12 July 1982) where, after referring to a number of the relevant authorities, Lindenmayer J. said:

``All that is necessary, it seems, is that the Court should regard the situation between the parties as being such that it would not be reasonable or sensible or practicable to expect them to continue to remain in the home together.''

That was the very test which Ellis J. applied in this case and we consider that it was a proper approach for him to have adopted.

There have been numerous reported cases on the application of sec. 114(1), including a number of decisions of the Full Court. Many of them lay down useful guidelines to assist trial judges in the exercise of the discretion under sec. 114(1), but they should be treated as guidelines only to assist in the proper exercise of the important discretion given under that section. They should not be seen as laying down a fixed list of criteria which must be established for the application to be successful. A judge is required to exercise his own discretion in the matter, but no doubt in the proper exercise of that discretion he will be guided by assistance given to him in authoritative judgments in this Court. In our view there is no principle of the type contended for by counsel for the husband under ground 2 of the amended notice.

Accordingly, we turn to ground 3, which was the last of the grounds in the notice. In effect that ground contended that his Honour's discretion had miscarried in that he afforded excessive weight to the inconvenience suffered by the wife and children in their present accommodation and insufficient weight to other factors, namely the hardship which may be occasioned to the husband, the possibility of the order interfering with the existing access arrangements, the wife's delay in bringing the application, the circumstance that the husband had been in occupation of the home since separation, the failure of the wife's father to give evidence, and the ``utility'' making an order pending the hearing of the property proceedings where it was likely, it was said, that the home would have to be sold in any event.

Save for the last matter, it is, in our view, a sufficient answer to these matters to say that his Honour considered each of those matters and, in the exercise of his discretion, concluded that it was still appropriate for him to make the order in favour of the wife. Counsel for the husband's challenge in this regard was to issues of weight where no error of fact or law has been demonstrated in the trial Judge. We have already referred to the authorities relevant to such a challenge and it is sufficient for us to say that we are not persuaded that his Honour gave inappropriate weight to these matters or that his discretion miscarried. The last matter listed above, namely the ``utility'' of making the order, was predicated upon the argument by counsel for the husband that it was inevitable that the matrimonial home would have to be sold. It does not appear that this matter was argued before his Honour. In the circumstances, it may be inappropriate for us to consider this aspect further, but to the extent to which it has validly been raised it is sufficient for us to say that that conclusion by no means necessarily follows from the facts to which our attention was directed during the course of argument of this appeal.

It was further argued for the appellant that the home had, over the period since separation, lost the characteristic of being the ``matrimonial home'' and consequently that sec. 114(1)(f) had no application. That may mean no more than that the order is justified under sec. 114(1)(e), but it is unnecessary for us to consider that aspect because this issue was not raised at the trial and, in any event, the evidence does not, in our view, justify that conclusion.

In our view the appeal should be dismissed. His Honour's order was a proper exercise of his discretion under sec. 114(1).

We were informed that on 25 February an order was made staying the order until the determination of this appeal. Consequently, the time fixed in the orders, namely 3 April 1986, has expired and the husband is still in occupation of the home. In those circumstances it was conceded that in the event that the appeal should be dismissed, the Court should allow the husband only a relatively short further time within which to vacate the home. We consider that it would be appropriate to make order no. I of the orders of 3 February 1986 operative from 30 July 1986. Accordingly, we would substitute that date for the date prescribed in order no. 2 of the orders of 3 February 1986.

At the conclusion of argument of this appeal the Court took argument as to costs of the appeal. Having regard to the respective financial circumstances of the parties and the circumstance that the husband has been unsuccessful in this appeal, we consider it appropriate that he should pay the respondent's costs of the appeal and we order accordingly.

The orders are as follows:

1. Paragraph 2 of the orders of the Court made on 3 February 1986 is varied by substituting 30 July 1986 for the date therein referred to.
2. Otherwise the appeal is dismissed.
3. The appellant pay the respondent's costs of this appeal to be agreed or as taxed by the registrar of the Family Court in Sydney.